FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
Pamela Heit for appellant.
B. Goodhand, Attorney, Criminal Division, Appellate Section,
U.S. Department of Justice, with whom Carmen Ortiz, United
States Attorney, Christopher J. Pohl, Assistant United States
Attorney, Timothy E. Moran, Assistant United States Attorney,
Leslie R. Caldwell, Assistant Attorney General, Criminal
Division, U.S. Department of Justice, and Sung-Hee Suh,
Deputy Assistant Attorney General, Criminal Division, U.S.
Department of Justice, were on brief for appellee.
Lynch, Lipez, and Barron, Circuit Judges.
appellant Francisco Monteiro and his accomplice Joseph
Guarneri planned and executed a robbery of fellow drug
traffickers Stanley and Joshua Gonsalves. Guarneri
subsequently became a customer of Monteiro's, purchasing
fifty to one hundred grams of heroin from him on a weekly
basis. In early 2013, Drug Enforcement Administration
("DEA") agents apprehended Guarneri for drug
trafficking and convinced him to turn government's
witness against his former co-conspirator.
an eight-day trial, a jury found Monteiro guilty on one count
relating to the 2011 robbery and three counts relating to the
subsequent drug conspiracy. Monteiro challenges his
conviction and sentence on numerous grounds. Finding none of
his contentions meritorious, we affirm.
provide a summary of the essential facts of this case, framed
in the light most compatible with the jury's verdict,
saving additional detail for the analysis that follows.
See United States v. Manor, 633 F.3d 11, 12 (1st
The 2011 Robbery
first became friendly with fellow Boston-area drug trafficker
Joseph Guarneri in 2009, and Guarneri began selling him
oxycodone. Eventually, Monteiro told Guarneri that he could
supply him pills at a better price. Soon after, the
buyer-seller relationship flipped and Guarneri began
purchasing batches of fifty to one hundred oxycodone pills
from Monteiro to resell.
then began travelling to Florida to purchase larger
quantities of oxycodone from another supplier. He eventually
introduced two other Boston-area drug traffickers, the
brothers Stanley and Joshua Gonsalves, to his Florida
supplier. After Stanley Gonsalves purchased a large batch of
pills from Guarneri's supplier, he asked Guarneri to set
up another purchase. Guarneri and Monteiro responded to this
request by formulating a scheme to rob the Gonsalves
told Stanley Gonsalves that he could secure 10, 000 oxycodone
pills in exchange for $225, 000. On May 13, 2011 Guarneri
lured the Gonsalves brothers to Monteiro's home to
execute the purported drug purchase. When the Gonsalves
brothers arrived, Guarneri brought Stanley into
Monteiro's home, while Joshua remained in his
brother's blue Mercedes SUV with another associate and
approximately $225, 000 in cash. Inside the home, Stanley
told Monteiro that he wanted to see the pills so that he
could examine and count them. Monteiro told Stanley that he
would not show him the pills until Stanley showed him the
$225, 000. Stanley agreed, and sent Guarneri out to his car
to fetch his brother Joshua and the money.
Guarneri reentered the home with Joshua and the money, two
other accomplices who had been lying-in-wait - Tavares
Bonnett and Michael Fula -- drew their guns and trained them
on the Gonsalves brothers. Initially, Stanley refused to hand
over the cash to Monteiro. To overcome this resistance,
Bonnett hit Stanley on the side of the head with his gun.
Stanley then handed the money over to Monteiro and his
accomplices. At Monteiro's instruction, Guarneri again
went outside to the Gonsalves vehicle to secure any weapons
the brothers might have brought with them. After Guarneri
found a gun in the vehicle, Monteiro, Bonnett, Fula, and
Stanley all rushed out of the house, and Guarneri handed the
weapon to Monteiro.
the Gonsalves brothers got into their Mercedes and drove
away. At that point, four other individuals who had been
hiding in the house rushed out, jumped into a parked Volvo,
and sped off in the same direction as the Mercedes.
Eventually, the Volvo passed the Gonsalves brothers'
Mercedes, and the Mercedes rammed the Volvo off the road.
Meanwhile, Monteiro, Guarneri, Bonnett, and Fula traveled to
the home of Monteiro's grandmother, where they divided
the proceeds of the robbery. Monteiro kept most of the money.
Guarneri collected $70, 000, and the remaining cash was split
between Bonnett and Fula.
The 2013 Drug Conspiracy
2012, Monteiro had begun selling heroin to Guarneri in
batches of either fifty or one hundred grams. Sometimes
Monteiro sold him powdered heroin. At other times the heroin
was solid, either in the shape of a hockey puck or a tall,
early 2013, the DEA approached Guarneri and informed him that
he would soon be facing a federal indictment for drug
trafficking. Agents told Guarneri that he could reduce his
prison sentence if he cooperated in an investigation against
Monteiro, and Guarneri agreed to assist them.
first called Monteiro while serving as a DEA informant on
February 14, arranging to purchase 100 grams of heroin at a
price of $6, 500. The following day, Guarneri drove to New
Bedford, Massachusetts and picked up Monteiro and
Monteiro's cousin, Manuel Lopes, to initiate the heroin
sale. Monteiro and Lopes directed Guarneri to a building, and
Lopes took Guarneri into an apartment there. Inside, Guarneri
gave Lopes and another individual $6, 500 in exchange for
96.4 grams of heroin.
February 20, Guarneri again met with Monteiro, this time to
set up a fifty-gram heroin purchase. The two spoke again by
phone two days later, and Monteiro directed Guarneri to
purchase the drugs from Lopes in New Bedford. When Guarneri
met Lopes later that day, however, Lopes told Guarneri that
his source was not able to procure the heroin, and Guarneri
again spoke with Monteiro by phone several days later on
February 25, and Monteiro confirmed that the sale would go
forward that day. He also told Guarneri that they would not
be conducting the sale in the same apartment as the previous
transaction because Monteiro had robbed the occupant in the
interim. When Guarneri traveled to New Bedford to purchase
the drugs, he found Lopes rather than Monteiro at the site.
Lopes tried to coax Guarneri to advance him the money without
providing the heroin, but Guarneri refused. Lopes left the
site, and Monteiro showed up and berated Guarneri for not
trusting his accomplice. Monteiro convinced Guarneri to hand
over the money, and he purportedly left to get the heroin.
However, Monteiro never came back. Later, Monteiro called
Guarneri and falsely told him that he had been stopped by the
police and they had seized the purchase money.
later, law-enforcement authorities secured arrest warrants
for Monteiro and Lopes, and search warrants for their
respective residences. Police executed the warrants on March
1. At Monteiro's home, police found $1, 300 in currency
with serial numbers matching the money that DEA agents had
given to Guarneri. They also discovered seven small envelopes
of heroin stamped with the word "Future" in green
ink. At Lopes's residence, police found thousands of
identically packaged envelopes with the green
September 2014, a federal grand jury in Massachusetts issued
a five-count superseding indictment charging Monteiro, Lopes,
and another individual with conspiring to possess with intent
to distribute one hundred grams or more of heroin, in
violation of 21 U.S.C. § 846 (Count 1); possession with
intent to distribute and distribution of heroin, in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count
2); and possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §
2 (Count 3). The indictment also charged Monteiro, alone,
with conspiring to commit a Hobbs Act robbery, in violation
of 18 U.S.C. § 1951 (Count 4); and using and carrying a
firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C.
§ 2 (Count 5).
an eight-day trial in April 2015, a jury convicted Monteiro
on Counts 1 - 4 and acquitted him on Count 5. The district
court sentenced Monteiro to 250 months of imprisonment and 8
years of supervised release. Monteiro timely appealed both
his conviction and sentence.
presses six primary claims of error on appeal, asserting
that: (1) the drug charges (Counts 1 - 3) and the robbery
charges (Counts 4 and 5) were improperly joined and should
have been severed; (2) the evidence presented at trial was
insufficient to convict him for possession with intent to
distribute heroin (Count 3); (3) the district court admitted
evidence that he views as inappropriately prejudicial; (4)
the district court erred in curtailing his attorney's
attempt to question defense witness Joshua Gonsalves on
redirect; (5) the district court's jury instructions
relating to the terms "aiding and abetting" were
flawed; and (6) the district court improperly applied certain
sentencing enhancements when calculating his Guidelines
Sentencing Range. We address each argument in turn.
Joinder of Charges and Denial of Monteiro's Motion to
trial Monteiro argued that the drug conspiracy charges and
robbery charges should have been tried separately and that
the decision to join them violated Federal Rule of Criminal
Procedure 8(a). He also unsuccessfully argued that even if
initial joinder was appropriate, the district should have
severed the charges pursuant to Rule 14(a). Monteiro renews
both arguments on appeal.
"Rule 8 claim is primarily one of law, which we review
de novo, while [a] Rule 14 claim involves application of a
general standard to particular facts, such that deference to
the lower court is appropriate." United States v.
Boulanger, 444 F.3d 76, 87 (1st Cir. 2006) (alteration
in original) (quoting United States v.
Meléndez, 301 F.3d 27, 35 (1st Cir. 2002)).
Hence, we review a trial court's denial of a Rule 14
motion to sever for abuse of discretion. See United
States v. Alosa, 14 F.3d 693, 694-95 (1st Cir. 1994).
8(a) states that joinder of charges is appropriate if the
offenses "are of the same or similar character" or
if they "are connected with or constitute parts of a
common scheme or plan." Boulanger, 444 F.3d at
87. We have stated that the rule's joinder provision
should be "generously construed in favor of
joinder." United States v. Randazzo, 80 F.3d
623, 627 (1st Cir. 1996); see also Meléndez,
301 F.3d at 35. The two sets of charges need not be
identical, and "we assess similarity in terms of how the
government saw its case at the time of the indictment."
Boulanger, 444 F.3 at 87 (quoting
Meléndez, 301 F.3d at 35). Traditionally, we
consider factors such as whether the charged offenses fall
under the same statute, whether the crimes involved similar
victims, locations, or modes of operation, as well as when
the purported conduct occurred. Id. Moreover,
joinder is proper if it "allows the jury to see the
complete set of facts about the alleged criminal
enterprise." 1A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 143
(4th ed. 2016). Hence, we also consider "the extent of
common evidence" among the charged offenses.
Randazzo, 80 F.3d at 628.
on these considerations, joinder of Monteiro's charges
was appropriate. Throughout the trial, the government sought
to prove that Monteiro was not only a drug dealer, but also a
"robbery artist" -- stealing both cash and drugs
from other dealers -- to finance his own enterprise.
Moreover, Guarneri was a key link between the two sets of
crimes. He was not, as Monteiro suggests, a happenstance
prosecution witness who could have testified at two different
trials. Rather, Guarneri provided crucial testimony that tied
together the strands of Monteiro's entire criminal
enterprise, as he was both Monteiro's accomplice in
robbing the Gonsalves brothers (Counts 4 and 5) and
Monteiro's customer in the drug conspiracy (Counts 1 -
3). Furthermore, the government presented evidence at trial
indicating that Monteiro had set up a drug deal with
Guarneri, only to later steal Guarneri's money, ...